When “shall make available to the public” means sorry, you can’t have it

It’s been 8 weeks now since two 17 year-old workers lost legs in an industrial auger while employed at a grain handling facility in Kremlin, Oklahoma. One of the young men remains in the hospital, but may be released soon to a rehabilitation facility. When I first wrote about this horrible incident, I noted that the safety rules governing young agricultural workers were more than 40 years old, the Labor Department was trying to update them, but proposed revisions were stalled (for 9 months) at the White House’s Office of Management and Budget (OMB).

The young worker and farm safety advocates who brought attention to OMB’s unreasonable delay—and a Huffington Post article—-deserve credit for helping to free the proposal from OMB’s Office of Information and Regulatory Affairs (OIRA) and allow the Labor Department (DOL) to begin receiving public comments on it. The proposed improvements, with the official name “Child Labor Regulations, Orders and Statements of Interpretation; Child Labor Violations, Civil Money Penalties” became available for public review on September 2, and interested individuals have until November 1 to submit feedback to DOL about them.

After reading the proposal, I wondered why the interagency review took 9 months to complete. The issues are not particularly complex, the document not especially lengthy, and the estimated costs negligible for farm employers who hire children under age 18. Was the proposal just forgotten on someone’s desk collecting dust, or were there ongoing, substantive exchanges between government officials that continued for nearly a year?

One way to find out, I thought, was to ask OMB to provide copies of documents related to the interagency review. Executive Order 12866 (EO), the one that guide’s the Administration’s centralize review of regulations, includes the following provision:

“After the regulatory action has been published in the Federal Register or otherwise issued to the public, or after the agency has announced its decision not to publish or issue the regulatory action, OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this section.”

Sweet. I sent a letter to OMB requesting all documents and communications exchanged between OIRA and DOL, USDA, the Small Business Administration and any non-governmental organizations, about the proposal. The EO’s definition of a “regulatory action” includes a notice of proposed rulemaking, and DOL’s proposal was published in the Federal Register on September 2. I thought my request was legitimate.

Yesterday I received a response from OMB. It read in part:

“In response to your request, OMB conducted a search of its files for documents that are responsive to your request, and identified 1,079 potentially responsive pages. We have determined that 1,027 pages are exempt from mandatory disclosure, in their entirety, pursuant to FOIA exemption 5 (USC 552(b)(5)) because they are interagency or intra-agency predicisional, deliberative materials.” [emphasis added]

Hmmm….since that particularly provision of the Executive Order expressly orders the disclosure of inter-agency communications, it seems contrary for OMB to invoke FOIA Exemption 5. Why would the authors of the Executive Order include this provision mandating disclosure, if Administration officials can simply turn around and make it null by invoking a FOIA exemption?

Celeste Monforton is a fellow in the Collegium Ramazzini; a lecturer at Texas State University; and professorial lecturer at the Milken Institute School of Public Health at George Washington University. She receives funding from the Public Welfare Foundation.

One hand doesn’t know what the other is doing and everyone just keeps going on like nothing happened. I find it funny they tell you how many pages you MIGHT find useful, but then they decide which ones you’ll actually get.

We’ve also run into this problem several times when trying to obtain review documents related to rules from EPA and other agencies. The administration’s refusal to release these documents, and their reliance on a FOIA exemption to justify it, is particularly distressing given that one of Obama’s first acts in office was to direct his attorney general to reinstate the presumption in favor of disclosure under FOIA, which had been reversed during the Bush Administration. http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/ Given that EO 12866 was issued after FOIA (and thus presumably written with an awareness of the existence of the FOIA section b(5)exemption), it would seem that releasing these review documents pursuant to the EO’s transparency provisions would be a slam dunk case for the application of the presumption in favor of disclosure.